544. Liability for trespass-Exception based on command of law. 545. Liability for trespass-Exception based on right to possession.

§ 546. Liability for trespass-Exception based on necessity.
547. Liability for trespass-Exception based on consent.
§ 548. Same continued-By license-Defined.

§ 549. Same continued-Licenses, how created-Rights and incidents.

$550. Same continued-Nature of interest created.

§ 551.

552.

§ 553.

§ 554.

Same continued-Interest created continued-Authorities conflicting.

Same continued-When premises alienated.

Agreement for interest in land-Will operate as a license.
Agreements for sale of growing trees operate as licenses.

§ 555. Same continued-Revocation of licenses.

556. Same continued-Revocation when expenditure of money and improvements have been made.

$ 557. Use of licenses in cases of trespass.

§ 521. Introductory.-Injuries to property rights may be coupled with force or without that element, the same as injuries to personal rights, and property rights in rem may be divided into those concerning realty and those concerning personalty. With regard to rights concerning realty, wrongs coupled with force may be by intrusion, amounting to trespass, to ouster or to forcible entry and detainer, or may be by injury to the realty itself, amounting to trespass or to waste. In respect to rights concerning personalty, these wrongs may be by an unlawful taking of the property, amounting to trespass. Trespass may be with force and without it, the remedies for the former being quare clausum fregit and vi et armis, and for the latter on the case, and the latter will be treated at another time. Likewise waste is of two kinds-voluntary, which is with force; and permissive, which is without, and only the former will be considered in this connection. Forcible entry and detainer, as its name indicates, is always coupled with force, but is a wrong covered in many states by statute superseding the common law.

§ 522. Trespass-Rights Involved-Possession.-In respect to the first of wrongs by intrusion, it is usually said that trespass is an injury to the possession, and hence, that one who is not in possession may not maintain an action in trespass quare clausum fregit. In cases where the strict application of this rule would work injustice, it is held that the possession necessary is not the pedis possessio of actual occupancy, but that constructive possession is sufficient.1 Actual possession has been said to be "an actual and continuous occupancy or exercise of full dominion, either by occupancy of the whole, or by occupancy of part in the name of the whole, with evidence of the bounds, where the law would extend the possession to such bounds." The same court defined constructive possession as "that possession which the law annexes to the title."

Actual possession, however, is not essential to maintain the action, and this kind of constructive possession is not sufficient, if the land is actually occupied by another under claim of right. In England, where almost all lands are occupied, it is the law that premises must be in the actual possession of the one having seisin in law, or some one for him,3 in order for trespass to be maintained. This rule was followed by some of the early American courts.*

523. Same Continued-The Rule as to the Right of Possession in This Country.-But the different condi

1 Gillespie v. Dew, 1 Stew. 229, 18 Am. Dec. 42; Gent v. Lynch, 23 Md. 58, 87 Am. Dec. 558; McColman v. Wilkes, 3 Strob. 465, 51 Am. Dec. 637; Van Brunt v. Schenck, 11 Johns. 377; McFeten v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076.

2 McColman v. Wilkes, 3 Strob. 465, 51 Am. Dec. 637.

3 Bacon's Abridgment, tit. "Trespass," c. 3; 1 Chitty on Pleading, 176, 177; 3 Blackstone's Commentaries, 210; 3 Starkie on Evidence, 1436.

4.McClain v. Todd, 5 J. J. Marsh. 335, 22 Am. Dec. 37, citing cases. See Bradnon v. Grimke, 1 Nott & McC. 363.

tions surrounding the ownership of land in this country, as compared with England, demand another rule. Here a proprietor often lives at a distance from his lands. He oftentimes buys and sells them without ever setting foot thereon. Frequently the owner leaves them untenanted and unoccupied for months or years, because he cannot, or does not need to, use them. To deny him the right to recover for trespasses upon such lands would rob him of the protection of the law over valuable property, and allow great injuries to be inflicted unredressed. Hence, here, mere title, without actual entry, will draw with it constructive possession such as can sustain trespass. A party must be the owner, or in possession at the time of the trespass in order to maintain the action. An owner of unimproved lands is to be considered in possession. Actual possession, however, is prima facie evidence of title and right of possession, until the contrary is proven, and the one who would dispute the title must prove a better one in himself,s consisting of the true ownership, or a prior continuing possession.10 So that, while constructive possession can sustain an action for trespass, it will not be

6

9

5 McColman v. Wilkes, 3 Strob. 465, 51 Am. Dec. 637; Van Rensalaer v. Radcliffe, 10 Wend. 639, 25 Am. Dec. 682; Gillespie v. Dew, 1 Stew. 229, 18 Am. Dec. 42; Chelsey v. Brockway, 34 Vt. 550; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 52 Am. St. Rep. 890, 21 S. E. 1035.

6 Nelson v. Jenkins, 42 Neb. 133, 60 N. W. 311; Yellow River R. Co. v. Harris, 35 Fla. 385, 17 South. 568.

7 Irvin v. Patchin, 164 Pa. St. 51, 30 Atl. 436.

8 Heath v. Williams, 25 Me. 209, 43 Am. Dec. 265; Finch v. Alston, 2 Stew. & P. 83, 23 Am. Dec. 299; Linard v. Crossland, 10 Tex. 462, 60 Am. Dec. 213; Omaha etc. Refining Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep. 185, 21 Pac. 925; McLean v. Farden, 61 Ill. 106; Bigler v. Antes, 21 Pa. St. 288.

⚫ Wilsons v. Bibb, 1 Dana, 7, 25 Am. Dec. 118; Rawson v. Morse, 4 Pick. 127; Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 485. 10 See Barnstable v. Thacher, 3 Met. 239.

sufficient so long as the land is in the actual possession of another.11 It may be said, then, that actual possession, or the undisputed right thereto, are the essential prerequisites of an action of trespass quare clausum fregit.

524. Same Continued-Nature of Right and Wrong of Trespass Discussed upon Principle. Every tort is a violation of some primary right, and every right of action is a remedial right, founded upon the breach of some primary duty to observe a primary right. The purpose of this treatise is to define these primary rights and duties, which give rise to actions ex delicto, in order that the underlying principle may be plain and easily applied, and to determine and illustrate when these primary rights and duties exist, and what are violations thereof, so that the reader may ascer tain what facts will give rise to a right of action.

The statement that actual or undisputed right to possession are the essential elements of trespass does not present the primary right involved, but only those facts which create such right. Again, the expression usually employed, that trespass is an injury to the possession, does not define the wrong, unless we understand possession to mean some right. If "possession" is used for "right to possession" or "to occupy," the proposition is not supported by the authorities, for one may have the right to possession of land actually held by another, and still not be able to maintain trespass. 12 So, if it means the undisputed right to occupy, it will not cover the case of a wrongdoer who is actually occupying the land.13 If the apparent

11 Gent v. Lynch, 23 Md. 58, 87 Am. Dec. 558; McColman v. Wilkes, 3 Strob. 465, 51 Am. Dec. 637; Safford v. Basto, 4 Mich. 406; Van Brunt v. Schenck, 11 Johns. 385; Renshaw v. Lloyd, 50 Mo. 368; Green v. Pettingill, 47 N. H. 375, 93 Am. Dec. 444. 12 Post, sec. 527, n. 43.

13 Post, sec. 527, n. 37.

right of possession attaching to the actual occupation of lands is intended, then every entry upon lands wrongfully held by a disseisor, even though made by the true owner having the legal right to possession would be a trespass. Such, however, has never been held to be the law, except as will appear later on, as a result of modern statutes.14

Taking pleading as a guide, injuries to the legal right to possession were remedied by ejectment, writs of entry, or even by actual entry, and wrongs to the apparent right of possession by forcible entry and detainer. Trespass to real property is redressed by an action of trespass quare clausum fregit, in which the inquiry is as to the defendant's right to break the close surrounding the plaintiff's land. The test of the defendant's wrong would be the question of his right to cross the boundary or his duty to refrain from doing so, and the complainant's right of action would depend upon his right to demand the performance of such duty. In other words, judging from the common-law action the wrong consists in interfering with one's right of exclusive control over his lands.

Blackstone says: "In general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense." 15 But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property."16 "Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close, the words of the writ of trespass commanding the defendant to show cause